The Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016

PART 2 Access to Railway Infrastructure and Services

Access rights

5.—(1) A railway undertaking must be granted, on equitable, non-discriminatory and transparent conditions, access rights to such railway infrastructure as may be necessary for the purpose of operating all types of rail freight, or international passenger, services.

(2) The access rights described in paragraph (1) include access to railway infrastructure connecting the service facilities referred to in paragraph 2 of Schedule 2.

(3) The access rights described in paragraph (1) for the purpose of operating rail freight services include the right of access to railway infrastructure serving, or potentially serving, more than one final customer.

(4) The access rights of a railway undertaking for the purpose of the operation of an international passenger service include the right to pick up passengers at any station located on the international route and set them down at another, including stations located in the same Member State.

(5) The access rights conferred by paragraphs (1) to (4) are exercisable subject to the provisions of regulation 33, and to paragraph (6).

(6) Subject to paragraph (7), the Office of Rail and Road may limit the access rights granted by this regulation on services between a place of departure and a destination which are covered by one or more public service contracts which are in accordance with the law of the European Union.

(7) The access rights granted under paragraph (4) must not be restricted except where the exercise of such rights would compromise the economic equilibrium of a public service contract.

(8) It is the duty of the infrastructure manager to ensure that the entitlements conferred by this regulation are honoured.

(9) Without prejudice to the generality of regulation 32, if a railway undertaking is denied the entitlements conferred on it by this regulation other than pursuant to a decision of the Office of Rail and Road under paragraph (6) or regulation 33, that railway undertaking has a right of appeal to the Office of Rail and Road in accordance with regulation 32.

Access to services

6.—(1) An infrastructure manager must supply to all railway undertakings, in a non-discriminatory manner, the minimum access package described in paragraph 1 of Schedule 2.

(2) Subject to paragraph (4) a service provider must supply to all railway undertakings, in a non-discriminatory manner, access, including track access, to service facilities and the supply of services described in paragraph 2 of Schedule 2.

(3) Requests by railway undertakings for access to, and the supply of, services described in paragraph 2 of Schedule 2 must be answered within a reasonable time limit as stipulated by the Office of Rail and Road.

(4) Subject to paragraph (7), where a service provider supplies any of the services described in paragraph 2 of Schedule 2, a request for access to, and the supply of, such services may only be refused if a viable alternative exists which would enable the railway undertaking to operate the freight or passenger service concerned on the same or an alternative route under economically acceptable conditions.

(5) Where—

(a) a request referred to in paragraph (3) concerns access to and the supply of services described in paragraph 2(a), (b), (c), (d), (e), (f) and (i) of Schedule 2; and

(b) such request is made to a service provider which is under the direct or indirect control of a dominant body or firm,

the service provider must justify, in writing, any decision to refuse such a request, and provide information about the viable alternative described in paragraph (4).

(6) Paragraph (4) does not oblige the service provider to make investments in resources or facilities in order to accommodate all requests by railway undertakings.

(7) Where a service provider encounters a conflict between different requests for access to, and the supply of, services described in paragraph 2 of Schedule 2, it must attempt to meet all requests in so far as possible.

(8) If no viable alternative is available, and it is not possible to accommodate all requests for capacity for the relevant facility on the basis of demonstrated needs, the applicant may appeal to the Office of Rail and Road.

(9) Where a service facility described in paragraph 2 of Schedule 2 has not been in use for at least two consecutive years and interest by a railway undertaking for access to this facility has been expressed to the service provider on the basis of demonstrated need, the service provider must—

(a) offer the operation of the service facility, or part of it, for lease as a rail service facility, and,

(b) publicise this offer.

(10) Paragraph (9) does not apply if the service provider can demonstrate that ongoing redevelopment work reasonably prevents the use of the service facility by any railway undertaking.

(11) Where the service provider offers to supply any of the services described in paragraph 3 of Schedule 2 as an additional service it must, in response to a request from a railway undertaking, supply the services to that railway undertaking in a non-discriminatory manner.

(12) A railway undertaking may request the supply of any of the services described in paragraph 4 of Schedule 2 from a service provider but that service provider is under no obligation to supply the services requested; where the service provider does offer to supply such services, it must do so in a non-discriminatory manner.

(13) Without prejudice to the generality of regulation 32, if a railway undertaking is denied the entitlements conferred on it by this regulation, that railway undertaking has a right of appeal to the Office of Rail and Road in accordance with regulation 32.

Cross-border agreements

7.—(1) The Secretary of State must ensure that provisions contained in cross-border agreements do not discriminate between railway undertakings, or restrict their freedom to operate cross-border services.

(2) Without prejudice to the division of competence between the European Union and Member States, the Secretary of State must notify the European Commission of any intention to enter into negotiations on, to conclude, or to revise a cross-border agreement.

(3) The Secretary of State must keep the European Commission regularly informed of any negotiations referred to in paragraph (2) and, where appropriate, must invite the European Commission to participate as an observer.

(4) The Secretary of State may apply or conclude a new or revised cross-border agreement with countries which are not EEA States provided that it is compatible with European Union law and does not harm the object and purpose of the transport policy of the European Union.